Sydney man acquitted of yacht club fire

A fire is shown completely destroying the three-storey Royal Cape Breton Yacht Club building in Sydney on May 3, 2013, in this file photo. On Friday, the Crown dropped its case against Derrick Joseph Harris of Sydney for starting the fire when provincial court Judge Brian Williston ruled that the statement given Cape Breton Regional Police by Harris was the result of an inducement and therefore not given freely or voluntarily. Cape Breton Post photo

SYDNEY — The Crown's case against a Sydney man charged with burning down the Royal Cape Breton Yacht Club went up in smoke Friday when a provincial court judge acquitted the accused before the trial even started.

Provincial court Judge Brian Williston ruled Friday that the statement given Cape Breton Regional Police by accused Derrick Joseph Harris was the result of an inducement and therefore not given freely or voluntarily.

Williston concluded that because Harris has a diminished mental capacity, the comments made to him by investigator Const. A.J. MacIsaac during an early morning, one-hour interrogation could be construed by Harris as offering a promise that he would not be charged if he admitted to the crime.

The judge said while the conduct of MacIsaac was not oppressive in terms of an individual with an average developmental state, it was oppressive for Harris who has a diminished mental capacity.

"In my view, these circumstances created an atmosphere of inducement such that the will of the accused was overborne and any hesitation he may have had about providing a statement was removed by these inducements," said Williston.

In criminal law, statements made to police must be proven to be voluntary before they can be entered into evidence at the trial.

Harris, 34, was charged with arson in connection with the May 3, 2013, fire which destroyed the century-old landmark on Sydney's waterfront.

Prior to the start of the trial proper, Crown prosecutor Shane Russell and defence lawyer Drew Rogers made legal arguments during process called a void dire — a hearing to determine the admissibility of evidence.

Rogers first challenged whether the arrest of Harris was valid. Williston ruled it was a valid arrest. Rogers then challenged the voluntariness of the statement, which Williston ruled was not voluntarily.

As a result of the ruling, Russell informed the court that without the statement in evidence, the Crown could not prove its case which resulted in the judge issuing an acquittal for Harris.

Speaking during an interview after the ruling, Russell termed the decision as being thorough and it is unlikely the Crown would file an appeal.

Desiree Vassallo, spokesperson for the police, said Friday the service takes such decisions very seriously and will review the decision in detail before deciding whether there should be any changes in how interrogations are conducted.

Harris was arrested by police the day after the fire and was questioned by MacIsaac during a videotaped statement for one hour and 16 minutes. MacIsaac woke Harris in a holding cell and took him to an interview room.

The officer testified during the voir dire he observed no signs of drug or alcohol impairment by Harris or any sign of him needing medical attention.

In his decision, Williston referred to MacIsaac's testimony in which he admitted to telling Harris police had eyewitnesses who saw him leave the scene, which was not true.

MacIsaac said it was a common technique used by police in a bid to get an accused to open up.

"Const. MacIsaac, further in his cross-examination by defence counsel, testified that other than his own suspicions, he did not have any evidence to suggest the accused was responsible for the fire at the yacht club," said Williston.

Further, said the judge, the officer testified he had no concern with the manner in which Harris spoke or concern with his mental capacity, having dealt with him in the past.

"It is obvious," said the judge in his decision, "in viewing the video that the accused Mr. Harris is a person with a disability in relation to his mental capacity."

Williston referred to testimony from two doctors, one for the Crown and the other for the defence, who both agreed Harris suffers from an intellectual disability.

During the interview, MacIsaac makes repeated references to witnesses seeing Harris at the scene along with videotape where MacIsaac tells Harris he doesn't think the fire was a big deal because the building was old, there was nothing inside and no one got hurt.

"Tell me what happened. Tell me why those are the big questions I have. Why? So I can put on paper and go 'Derrick didn't mean to hurt anybody.' I can at least put something on paper so I can put my file back in the filing cabinet. I have more important things to do than this file and I have actual criminals to go after and you are not a criminal," said MacIssac.

Later MacIsaac tells Harris that the fire isn't what he has to worry about but rather getting his life back on track and that all he did was make a mistake.

The officer said it was not about jail but more about Harris taking a step forward and moving on, moving out of Sydney.

"The remarks about putting it on paper, that it was not about jail, that he would put his rubber stamp on it, that he could go to bat for Harris, that it will give Harris a second chance sends a message, particularly to a person with an impaired intellectual capacity, that there is an advantage being held out to him if he gives a statement," wrote Williston, in his decision.

Harris admitted to police he started the fire by lighting a paper bag on fire and placing it on an old couch located outside the building.

"I feel like nothing matters anymore," said Harris, in his statement.

"I feel not cared about. I feel like I am going to die soon if I stay out too much around here. I just have a bad desire," he said, adding being bullied and teased by people who don't know him was taking a toll on his mental health.